Obama suspends Bush's Endangered Species Act Regulation

A while back I started a thread on the Bush Administration's attempt to get rid of a key review requirement related to the implementation of the Endangered Species Act. After using a shortened public comment period and using a comment framework that made it very hard for citizens to have input into the process, then shortening the review time line for the consideration of those comments, the Secretary of the Interior announced the regulation change just days before President Bush's term expired. The hope, obviously, was that once the regulation was changed, it would take another couple years to push through a new regulation changing things back. The Bush regulation, if left alone would have done away with the requirement that Federal agencies get independent review of decisions that might adversely affect endangered species. Here is a link to the CNN story announcing the move by the new administration to suspend the regulation put in place by the previous administration:

The new rules did not eliminate review for projects that may adversely affect listed species. This is a case of the media, enviros, and politicians negatively spinning a process efficiency that would have actually increased the amount of time available for National Marine Fisheries Service (NMFS) and US Fish and Wildlife Service (USFWS) to adequately review projects that DO have may adversely affect endangered species and their designated critical habitat. Articles put out by the media and the environmental community mischaracterize the new ESA regulations governing federal Section 7 consultations under the ESA (50 CFR 402.03) [CFR = code of federal regulations]. Here's how it really is:

The new regulations WOULD allow federal action agencies to make "may affect - not likely to adversely affect" (NLAA) determinations for projects where the effects on listed species are expected to be discountable, or insignificant, or completely beneficial. Beneficial effects are contemporaneous positive effects without any adverse effects to the species. Insignificant effects relate to the size of the impact and should never reach the scale where take occurs. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur (Source: ESA Handbook 1998). For you ESA neophytes, when either NMFS or USFWS issue a NLAA determination, they have completed INFORMAL CONSULTATION.

Some examples of activities that fit a NLAA determination MIGHT include piling replacements for existing boat docks (assuming best management practices), fish passage restoration (e.g., an undersized culver is replaced with a bridge), and aquatic habitat restoration.

The new regulations WOULD NOT allow federal action agencies (USFS, BLM, BPA, Corps of Engineers, etc.) to make determinations for projects that "may affect" ESA species or their critical habitat. If the effects of a federal project or permit are not wholly beneficial, discountable, or insignificant, then the federal action agency would initiate FORMAL CONSULTATION with NMFS and/or USFWS, and they would determine if the project would result in an adverse modification to critical habitat and/or jeopardize an ESA species. Projects that may affect species are issued "Reasonable and Prudent Measures" to mitigate adverse project effects. Additionally, if there is the potential for "taking" of an ESA species or its critical habitat, then the Services would issue what is called an "incidental take statement" that allows the project to occur and calculates how many individuals (of salmon, steelhead, etc.) would likely be effected (harmed or killed) by the proposed action.

For example, the Corps could not use these revised regulations to build a new dam on a salmon stream in Oregon or permit a LNG project on the Columbia River. Additionally, the Forest Service would not likely undergo a major estuarine restoration project without consulting with NMFS and/or USFWS. In these instances, there would clearly be measurable effects to ESA species. Furthermore, if a federal action agency did make an incorrect determination, and there were measurable effects to ESA species, then the action agency would be wide open to law suits from environmental groups and law school class projects.

The public and politicians appear to be unaware that funding for both NMFS and the USFWS have remained static over the last 4-6 years, and their staff numbers are dropping nationwide (as salaries increase and people retire or move on, their positions are not filled). This means that there are fewer NMFS and USFWS biologists available to review federal projects and determine effects on ESA species. By allowing federal action agencies to make NLAA determinations for actions with no measureable impact to ESA species, NMFS/USFWS is freed-up to focus on projects that MAY ADVERSELY AFFECT endangered species, providing for a more complete analysis of larger and more impactful projects.

The new rules did not eliminate review for projects that may adversely affect listed species. This is a case of the media, enviros, and politicians negatively spinning a process efficiency that would have actually increased the amount of time available for National Marine Fisheries Service (NMFS) and US Fish and Wildlife Service (USFWS) to adequately review projects that do have may adversely affect endangered species and their designated critical habitat. Articles put out by the media and the environmental community mischaracterize the new ESA regulations governing federal Section 7 consultations under the ESA (50 CFR 402.03) [CFR = code of federal regulations]. Here's how it really is:

Proposed Changes has the rules/proposed changes listed out and it seems that those items are more than the

This is a case of the media, enviros, and politicians negatively spinning a process efficiency

. While some of that may have been intended, the changes also provide some reasons for concern.

EDIT TO ADD: When MikeO initially posted the proposed rule changes last year I pulled them and read them at the time. Had some initial thoughts back then and just pulled it now to look at it. Figured I should share some of them as to why there was concern and not just knee jerk reaction:

As the background to the proposed rule (pages 47868-47869) indicates a 2004 GAO report found that the U.S. Fish and Wildlife Services and Marine Fisheries Services (the "Services") and the action agencies "resolve differences as to when consultation is needed." In other words the action agencies found the consultation process burdensome and wanted to clarify when they needed to consult with the Services.

The background continues by permitting different documents to initiate the consultation process and does say the action agencies to determine whether or not consultation is needed in very limited circumstances. And that in fact does indicate that the change is narrow and not over arching as you suggest.

But then there are the proposed changes. In "Biological Assessment" there is a clarification that "agencies do not have to create a new document" to initiate consultation if it is in another document prepared for another purpose. And while the documentation is in general subject to the Services discretion, and the action agency needs to point out where the relevant section is, as part of an entirely different document not designed to initiate consultation, well seems a bit like a place where things can slip through. Even if this was something that can be pointed to as a portion that will "make life easier" there is more, which snowballs.

Next there is a clarification of "cumulative effects" which is narrower than NEPA. NEPA says "reasonably foreseeable" rather than "reasonably certain" as ESA is claimed to be reasonably certain. Big difference between those two standards. And the whole causation discussion is something that is suspect – the proposed action must be an essential cause and that “an effect is reasonably certain to occur must be based on clear and substantial information.”

And this language – “if an effect would occur whether or not the action takes place, the action is not a cause of the direct or indirect effect.” And then they go on further discussing what “but for” means. Statements such as “Our intention is to make it clear that the effect cannot be just speculative and that it must be more than just likely to occur.”

And then the modifications start – “We propose that action agencies are not required to consult on those actions for which they determine their action will have “no effect” on listed species or critical habitat.”

Anyway Sec 402.03 provides that

(b) Federal agencies are not required to consult where there it is “not anticipated” to result in a take

AND

(1) No effect (see discussion of no effect in background) OR(2) The action is insignifcant contributor OR(3) Effects on speciesa. Not capable of being measured ORb. Wholly beneficialc. Remote chance of harm

C Adds that they need to only consult on only on the actions that do not fall in the exceptions in B

You say “Furthermore, if a federal action agency did make an incorrect determination, and there were measurable effects to ESA species, then the action agency would be wide open to law suits from environmental groups and law school class projects.” In fact there is a good argument that the codification adds protection for agencies These "clarifications”, even if some of these items are currently and informally in effect, will make law suits pretty much useless. A standard of “an effect is reasonably certain to occur must be based on clear and substantial information” being formally placed in the CFR, with the background statements, would be a VERY tough obstacle, particularly if the laws (which the background says have been pretty much unmodified since inception) are not spelling things out on the subject. The court would look at the CFRs and then the background to make sense of it all (assuming there is nothing in the legislative history to look at. )

The system has many issues already and the language does not make things better. As to the statement “The public and politicians appear to be unaware that funding for both NMFS and the USFWS have remained static over the last 4-6 years, and their staff numbers are dropping” I think many of us on the board (divers/photographers/videographers – in other words there is a very good chance some of this is preaching to the choir) have some passing knowledge of which agencies may have been given the short straw lately.

Bottom line, even if some of this is "clarifying" the things that do go on, the concerns of some people about this is far from merely a reaction to media hysteria.

Basically, the issue at hand is who gets to determine whether there "may be" an adverse effect. The fear (which is not unjustified, given how political appointments work and the tendency they have to ignore "science" they find inconvenient) is that an agency will make a unilateral determination (for reasons of ignorance, political advantage, whatever) that is INCORRECT regarding the negative impact of a project on endangered species. Based on this incorrect determination they will proceed without getting an independent review by anyone else (NMFS). Stating that there are too few NMFS employees because of a lack of funding and saying this reduction in workload help is, to me at least, akin to saying there are too few policemen and that unplugging the 911 center will help out by freeing up some of their time! The Bush administration de-funded the agency and then used their lack of resources as an excuse to portray this rule as a solution to that issue. Same thing happened with the FDA. FDA funding was cut, then they tried to use that as an excuse to lessen the restrictions on drug companies. I have no problem with any real attempt to streamline the process while living up to the spirit of the law but this was not an attempt to do that . . .

If the above post is determined to be a troll, I apologize for reacting!